Republic v Tunge & 6 others (Criminal Appeal 129 of 2019) [2026] KEHC 7273 (KLR) (26 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CRIMINAL APPEAL NO. 129 OF 2019** **REPUBLIC…….…………………………………………………………………APPELLANT** **VERSUS** **JONAH KIPLIMO TUNGE…………….……………………..……….1ST RESPONDENT** **REUBEN KIPKOECH LAGAT……………………….………………2ND RESPONDENT DIVINAH CHEPKEMBOI…………………………………………….3RD RESPONDENT** **ROSLINE KEMEY……………………………………………...........4TH RESPONDENT** **EMILY CHEBET CHOGE…………………………….………………5TH RESPONDENT** **PEREZ JEPKETENY KEMBOI………………….………………….6TH RESPONDENT** **GILBERT KIPROP NGENY…………………….……………………7TH RESPONDENT** **Coram: Before Justice R. Nyakundi** **Ms Sidi Kirenge for the State** **RULING** 1. The 1st, 2nd and 3rd Respondents were charged with the offence of conspiracy to defraud contrary to Section 317 of the Penal Code. The particulars of the offence are that on diverse dates between 30th May 2014 to 19" day of December 2014 at Moi Teaching and -Referral Hospital in Eldoret town within Uasin Gishu County, jointly conspired to defraud the Moi Teaching and Referral Hospital of Kshs. 6,436,132/- the property of the said Moi Teaching and Referral Hospital. 2. The 1st, 2nd and 3rd Respondents were charged with the offence of stealing by Servant Contrary to Section 281 of the Penal Code. The particulars of the offence are that on diverse dates between 30" May 2014 to 19"h day of December 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, jointly being servants of the said Moi Teaching and Referral Hospital as Revenue Accountant, System Administrator and Revenue Officer respectively, stole of Kshs. 6,436,132/- the property of the said Moi Teaching and Referral Hospital 3. The 1st, 2nd and 4th Respondents were charged with the offence of conspiracy to defraud contrary to Section 317 of the Penal Code. The particulars of the offence are that on diverse dates between 1st June 2014 to 1st day of November 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, jointly conspired to defraud the Moi Teaching and Referral Hospital of Kshs. 4,281,367/- the property of the said Moi Teaching and Referral Hospital. 4. The 1st, 2nd and 4th Respondents were charged with the offence of stealing by Servant Contrary to Section 281 of the Penal Code. The particulars of the offence are that on diverse dates between 15th June 2014 to 15th day of November 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, jointly being servants of the said Moi Teaching and Referral Hospital as Revenue Accountant, System Administrator and Revenue Officer respectively, stole of Kshs. 4,281,367/-the property of the said Moi Teaching and Referral Hospital, which came to your possession by virtue of your employment. 5. The 1st, 2nd and 5th Respondents were charged with the offence of conspiracy to defraud contrary to Section 317 of the Penal Code. The particulars of the offence are that on diverse dates between 2nd day of June 2014 to 30th day of December 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, jointly conspired to defraud the Moi Teaching and Referral Hospital of Kshs. 291,325/- the property of the said Moi Teaching and Referral Hospital. 6. The 1st, 2nd and 5th Respondents were charged with the offence of stealing by Servant Contrary to Section 281 of the Penal Code. The particulars of the offence are that on diverse dates between 2nd day of June 2014 to 30th day of December 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, jointly being servants of the said Moi Teaching and Referral Hospital as Revenue Accountant, System Administrator and Revenue Officer respectively, stole of Kshs. 291,325/-the property of the said Moi Teaching and Referral Hospital, which came to your possession by virtue of your employment. 7. The 1st, 2nd and 6th Respondents were charged with the offence of conspiracy to defraud contrary to Section 317 of the Penal Code. The particulars of the offence are that on diverse dates between 18th August 2014 to 17th day of November 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, jointly conspired to defraud the Moi Teaching and Referral Hospital of Kshs. 214,769/- the property of the said Moi Teaching and Referral Hospital. 8. The 1st, 2nd and 6th Respondents were charged with the offence of stealing by servant Contrary to Section 281 of the Penal Code. The particulars of the offence are that on diverse dates between 18th August 2014 to 17th day of November 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, jointly being servants of the said Moi Teaching and Referral Hospital as revenue accountant, system administrator and revenue officer respectively, stole of Kshs. 214,769/- the property of the said Moi Teaching and Referral Hospital, which came to your possession by virtue of your employment. 9. The 7th Respondent was charged with the offence of stealing by servant Contrary to Section 281 of the Penal Code. The particulars of the offence are that on diverse dates between 30th May to 30th December 2014 at Moi Teaching and Referral Hospital in Eldoret town within Uasin Gishu County, being a servant of the said Moi Teaching and Referral Hospital as billing officer stole of Kshs. 204,188/- the property of the said Moi Teaching and Referral Hospital, which came to your possession by virtue of your employment. **Decision** 1. From the history of this case the accused persons namely Jonah Kiplimo Tunge, Reuben Kipkoech Lagat, Divinah Chepkemboi, Rosline Kemey, Emily Chebet Choge, Perez Jepketeny Kemboi and Gilbert Kiprop Ngeny were all tried before the Lower Court for all the 4 Counts of conspiracy to defraud to Section 218 of the Penal Code. 2. The learned trial Magistrate examined and evaluated the entire evidence adduced by Prosecution and soon thereafter pronounced himself as follows: *The Prosecution in building the case sought to rely on technology based on the Funsoft system. The system has been discredited and is like a mousetrap that instead of catching mice only snaps the fingers of the owner of the house. The system developer in his own report admits the system was faulty and made recommendations on what was to be done to remedy the same including upgrading the system to implement further internal control mechanisms to ensure that the audit teams can get access to audit tools available on the newer version of the system. Despite an audit being done by the cybercrime unit, the Prosecution chose not to present their report leaving an adverse inference that it was not favorable to the Prosecution. Having considered the Prosecution case, defence and submissions, the court finds that the Prosecution has failed to prove the charges against the accused persons beyond reasonable doubt. They failed to prove conspiracy among them and that they took that money. They are given the benefit of doubt and acquitted under Section 215 of the CPC.* 1. The State was aggrieved with the decision and preferred an appeal as indicative of the petition of appeal filed in Court on 31st July 2018 which states as follows: The appellant being aggrieved with the whole of the judgement and acquittal delivered by Hon. Charles Obulutsa in the aforestated Eldoret Chief Magistrate's Court Criminal case number 1691 of 2015 appeals against the whole of the said judgement/acquittal to your lordship on the following grounds:- 1. *THAT the learned trial magistrate erred in law and in fact in acquitting the respondents notwithstanding substantial evidence to the contrary.* 2. *THAT the learned trial Magistrate misapprehended the law and the facts, acted on wrong principles and arrived at an erroneous conclusion by equating a forensic audit of an information system to a validation exercise and in acquitting the accused persons.* 3. *THAT the learned trial magistrate erred in law and fact as he misapprehended basic computer and mathematical concepts in finding that since the cash collection system had not been fully installed it was capable of being penetrated locally and internationally.* 4. *THAT the learned trial magistrate erred in law and fact by acquitting the Respondents whereas there was overwhelming evidence in law to warrant and sustain a conviction.* 5. *THAT the learned trial magistrate erred in law and fact in disregarding admissible facts and evidence to prove how the fraud and stealing was perpetrated and chose to base his judgment on a Cyber Crime report which was not produced in court to impute suspicion or draw an adverse inference that the report was not favourable to the prosecution therefore acquitted the Respondents.* 6. *THAT the Learned Magistrate erred in law and in fact in finding that the prosecution had failed to prove its case beyond any reasonable doubt in circumstances where evidence presented was clearly adequate to sustain and prove the charges preferred.* 7. *THAT the Learned, trial Magistrate misapprehended the basic revenue accounting practice and custom in acquitting the accused persons despite their defence being incapable of proffering any other reasonable hypothesis than conspiracy to defraud and stealing by servants.* 8. *THAT the learned trial Magistrate erred in Law and in fact by failing to consider the prosecution evidence about how the Respondents conspired to obtain money by improper documentation, altering of the electronic revenue collection system, taking and conversion of their employer's revenue and acquitting them.* 9. *THAT the Learned trial Magistrate erred in law and in fact in failing to find that the ingredients of the offences were prove.* 10. This is an appeal in which the Respondents have not been traced since their acquittal on 19th July 2018. The appeal has undergone many mentions and the record bears me witness and every time it is scheduled before a Judge, the State applies for adjournment since 22nd of August 2023. 11. A careful prospectus of the historical litigation of the present criminal trial and subsequent preferred appeal is a far cry from the laudable provisions in our Bill of Rights and other International Law instruments which are part of the sources of law of Kenya where applicable in so far as guarantees of fair trial rights are concerned. The criminal trial itself has been meandering through the Court since its inception and it is a prime example of what is an old adage in our Constitution under Article 159(2) (b) that justice shall not be delayed. This concept is a double-edged sword in criminal trials particularly in the new Constitutional Order 2010 in which the country signaled the cessation of a number of atrocities and human rights abuses in the realm of criminal cases adjudication. There are four categories in which the inherent jurisdiction of the Court should be invoked so that to avoid an overreach of delay on the part of prosecution in the finalization of the criminal proceedings; 12. Ensure convenience and fairness in legal proceedings. 13. Prevent steps being taken that will render judicial proceedings ineffective. 14. Prevent abuses of the court process and 15. Also in any event the High Court is empowered by the Constitution under Article 165(6) & (7) with supervisory jurisdiction to oversight the inferior Courts and tribunals. 16. This is a case in which one cannot avoid to describe the experience by the Respondents as that of unreasonable delays in their trial and subsequent intended appeal or as stated by the Court of Appeal a retrial. The legal principles which have been developed in the various authorities are pertinent in part to mention them in this ruling; thus: 17. *the duration of the delay;* 18. *the reasons advanced for the delay;* 19. *whether any person can be blamed for the delay;* 20. *the effect of the delay on the personal circumstances of the accused and witnesses;* 21. *the seriousness, extent or complexity of the charge or charges;* 22. *actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost;* 23. *the effect of the delay on the administration of justice;* 24. *the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued;* 25. *any other factor which in the opinion of the court ought to be taken into account.* *(3) If the court finds that the completion of the proceedings is being delayed unreasonably, the court may issue any such order as it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order-* *(d) where the accused has pleaded to the charge and the State or the defence, as the case may be, is unable to proceed with the case or refuses to do so, that the proceedings be continued and disposed of as if the case for the prosecution or the defence, as the case may be, has been closed. "* 1. The legal system of any country like Kenya has an impact on the delivery of justice be it in branch of the criminal, civil or commercial sector. In all this it calls for effective humane and fair justice system which are essential for the maintaining of the rule of law and for ensuring an environment in which equitable and sustainable development can occur. The principles and institutions established under our Constitution which comprises of the National Police Service under Article 244 & 245, the Director of Public Prosecution in Article 157 and the Judiciary in Article 159 determine efficiency and effectiveness of a legal system in which the enjoyment of fundamental rights, access to justice, timely delivery of justice and admission to bail are protected and guaranteed. These institutions must be properly resourced so that they can properly function to administer justice for the benefit of the country’s citizens particularly the poor, vulnerable, marginalized and those who see economic social and cultural rights are impeded. From my reading of the record, justice delayed is justice denied for the Respondents who have been within the corridors of justice looking forward for justice not only to be done but to be seen to be done. 2. This case holds significant importance for a national conversation to begin on delays in Kenya’s litigation cycle, for timely resolution of legal disputes is crucial to ensure that parties or accused persons have access to effective remedies and that justice is served. It is not lost for this Court to take judicial notice that delays in litigation undermines the fundamental rights of individuals and impedes the administration of justice. The delayed justice obviously is the part of the crisis of confidence in the Kenyan justice system. If this Court was to accept to exercise judicial discretion, it would be an affront to the Bill of Rights under Chapter 4 and Article 50 on fair trial rights. 3. This Court guided by the Constitution has inherent jurisdiction to control its own procedures so as to prevent being used to promote to achieve injustice 4. These multiple adjournments are a threat and violation of Article 50 (2(e) of the Constitution that a trial of an accused or for our case Appellant must commence and be concluded within a reasonable time. There has been unreasonable delay in prosecuting the appeal and I find no compelling reason to extend time even one more day. The appeal is struck out for want of prosecution. **DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF MAY 2026.** **.............................................** **R. NYAKUNDI** **JUDGE**